In re K.C.
Filed 10/17/13 In re K.C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re K.C., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
ROBERT C.,
Defendant and Appellant.
D063891
(Super. Ct. No. 506631E)
APPEAL from
an order of the Superior Court
of
County, Gary M. Bubis, Judge. Affirmed.
Valerie N.
Lankford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Robert C.
appeals the juvenile court's order ─ made concurrently with terminating
dependency jurisdiction ─ granting joint
K.C., to the boy's mother, R.S., with primary custody awarded to R.S. Robert contends the order was an abuse of
discretion. We affirm.
FACTS
On January 25, 2012, the
Agency (Agency) filed a dependency petition on behalf of K.C., alleging he
was at substantial risk of harm because R.S. had an extensive history of
substance abuse and had tested positive for drugs during the pregnancy. (Welf. & Inst. Code, § 300, subd.
(b).)
history dated back to 1989 and had caused her to lose custody and/or parental
rights to several children.
R.S.
identified Robert as K.C.'s father, and he was named on the birth
certificate. R.S. and Robert were no
longer in a relationship.
name="_ftnref2" title="">[2]
Robert, who
was unemployed, wanted K.C. to be placed with one of Robert's sisters while he
looked for a job. R.S. wanted K.C.
placed with her in a drug recovery program.
The social worker reported that K.C. would not be safe with either
parent and recommended both of them participate in reunification and learn how
to coparent the child. Notwithstanding
R.S.'s history with substance abuse and the dependency system, the social
worker was willing to "go out on a limb" and give her a "final
chance."
title="">[3]
In
February, R.S. entered Serenity House.
She tested positive for cocaine the first day, which was her last
positive drug test. Agency ran a
background check on Robert's sister and expressed doubt she would qualify for
placement. Robert suggested another
sister be evaluated. This sister, who
did not have a criminal or child welfare history, did qualify for
placement. Robert said he would live
with this sister and K.C.
In March,
R.S. submitted to the allegations in the petition, and the juvenile court made
a true finding.
In April,
the court held a contested disposition hearing and found by clear and
convincing evidence that K.C. would be exposed to substantial risk of harm if
returned to R.S.'s care. The court
ordered K.C. placed with the father in the maternal aunt's home. The court ordered supervised visitation for
R.S. and gave Agency discretion to lift supervision and allow overnight visits.
By summer,
Robert, who had obtained a full-time job cleaning ships, was able to get his
own apartment. K.C.'s godmother provided
child care for K.C. The social worker
reported Robert was doing a good job raising K.C.
Meanwhile,
R.S. was continuing to live at Serenity House, where she was progressing well
in her drug rehabilitation and
presented herself as a positive role model for her peers. R.S. also was undergoing therapy and her
therapist described her as a "model patient." R.S.'s visits with K.C. also went well, and
she transitioned to unsupervised visits.
In August, R.S. began having overnight visits with K.C.
Agency
recommended continued placement with Robert and services for R.S. Robert set the review hearing for trial and
requested termination of jurisdiction.
The court referred Robert and R.S. to family court services for
mediation.
R.S. wanted
to have 51 percent custody of K.C. so she would qualify for housing
through the Interfaith Community Services program. R.S. had been receiving 74 hours of
visitation per week, up from 48 hours.
In order to reach the 51 percent mark, she would have to have
visitation increased to approximately 85 hours per week. Agency recommended R.S. receive
51 percent custody of K.C. to enable her and her son to be eligible for
housing through the Interfaith Community Services program. Minor's counsel also supported R.S.'s
request.
By the time
of the contested review hearing on April
9, 2013, both parents had completed their reunification plans, and
Agency supported termination of jurisdiction.
The court announced the only issue to address was "exit
orders" ─ the orders that set forth the juvenile court's custody
determination as it terminates dependency
jurisdiction and which become part of the family law court
file. (See § 362.4;
Cal.App.4th 961, 970, fn. 13.) In a
letter, the housing manager of the Interfaith Community Services program said
R.S. and K.C. could move in on April 10 if R.S.'s custody request was granted.
request for 51 percent custody of K.C. as a request for a change of the
existing order of primary custody to Robert and hold her to a section 388
standard of demonstrating changed circumstances and the best interests of the
child.
The social
worker testified that both parents were capable and competent. However, R.S.'s only option for housing
required her to have primary custody of K.C.
The social worker opined it would be detrimental to K.C. if he could not
have regular contact with R.S. because she lacked housing.
Robert
testified that when K.C. was placed with him, he was told he would have to get
a job and his own residence, which he did.
Robert said R.S. should be held to the same standard, should have to
"get out to do the footwork" like he did, and she should not have it
"handed to her on a platter."
In his testimony, Robert also acknowledged that K.C. should regularly
visit R.S. and have a relationship with her.
Jackie
Engel, a client's advocate at the Interfaith Community Services, testified by
stipulation that "if joint physical and legal custody with primary
residence with Mom were to be ordered, it would satisfy their requirements for
housing at the [Interfaith] Community Services, and that this program will in
the future assess the custody of Mom with the Minor, and if it is determined
that Mom has less time with the Minor than Dad does, they will assess whether
Mom is qualified to continue to be in the program."
The court
found Robert and R.S. were two functional parents and each was able to take
care of K.C. "[I]n other words, if
the dad decided to get in a car and drive to South America and never be seen
again, I'd have no hesitation placing this child with the mother, and same
[with] the mother, if she leaves for South America and never comes back again,
the kid is safe with dad." The
court concluded there was no longer a protective issue with respect to either
parent, and, therefore, joint legal custody and joint physical custody were the
appropriate orders. The court found R.S.
had met her burden under section 388 of showing a change in circumstances and
it was in K.C.'s best interests for the court to issue custody orders providing
the parents with joint legal and physical custody.
The court
ordered R.S. to have "primary" residential custody of K.C. for the
sole purpose of having her obtain housing through Interfaith Community Services
because "it is in the bests interests of this child to keep his mother
sober and help her stay sober." The
court added: "And if she stays
sober, [she] and the dad are going to get along much better, and if [she] and
the dad are going to get along much better, the child is going to grow up in a
much healthier atmosphere, and the child will prosper, and that's the reason
why I'm doing this."
name="_ftnref5" title="">[5]
The court
then terminated jurisdiction.
DISCUSSION
Robert
contends granting "primary" physical custody to R.S. at the end of
the dependency case was an abuse of discretion.
The contention is without merit.
Legal Principles
Central to California's
dependency system are two goals:
protection of children at risk; and family preservation. In section 202, subdivision (a), "[t]he
Legislature has unequivocally declared the purpose of the dependency law is 'to
provide for the protection and safety of . . . each minor
under the jurisdiction of the juvenile court and to preserve and strengthen the
minor's family ties whenever possible, removing the minor from the custody of
his or her parents only when necessary for his or her
welfare. . . . When
removal of a minor is determined by the juvenile court to be necessary,
reunification of the minor with his or her family shall be a primary
objective. . . .' "
(Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 301-302.)
Section 202 further calls for a liberal interpretation of the provisions
of the Welfare and Institutions Code to carry out these goals. (§ 202, subd. (a).)
"In
the context of juvenile dependency, weighing the best interests of the
dependent child is always the court's paramount concern." (In re
Christopher I. (2003) 106 Cal.App.4th 533, 550.) Dependency law is designed to provide
"juvenile courts with the necessary tools and guidelines, as well as broad
discretion, to make appropriate orders regarding dependent children consistent
with this foundational principle."
(In re A.J. (2013) 214
Cal.App.4th 525, 536; see, e.g., § 245.5 ["In addition to all other
powers granted by law, the juvenile court may direct all such orders to the
parent, parents, or guardian of a minor who is subject to any proceedings under
this chapter as the court deems necessary and proper for the best interests
of . . . the minor.
These orders may concern the care, supervision, custody, conduct,
maintenance, and support of the minor. . . ."].)
Section 364
provides for review hearings every six months where a child has been removed
from parental custody but is later placed back in the home under court
supervision. (§ 364, subd. (a).) At those hearings, the court determines
whether continued supervision over the child is necessary. (§ 364, subd. (c); In re Natasha A. (1996) 42 Cal.App.4th 28, 35;
167, 172.) The court must terminate
jurisdiction unless Agency "establishes by a preponderance of the evidence
that the conditions still exist which would justify initial assumption of
jurisdiction under Section 300, or that those conditions are likely to exist if
supervision is withdrawn."
(§ 364, subd. (c); In re
N.S., supra, at p. 173.)
Under section
364, when a juvenile court terminates jurisdiction over a child, it may make
custody and visitation orders that become part of any family court proceeding
concerning the same child.
(§ 362.4; In re T.H.
(2010) 190 Cal.App.4th 1119, 1122-1123.)
When terminating jurisdiction and making a custody order, the juvenile
court must consider the best interests of the child. (In re
John W., supra, 41
Cal.App.4th at p. 973.)
We
"review the juvenile court's decision to terminate dependency jurisdiction
and to issue a custody (or 'exit') order pursuant to section 362.4 for abuse of
discretion [citation] and may not disturb the order unless the court
' " 'exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.' " ' " (Bridget
A. v. Superior Court, supra, 148 Cal.App.4th at p. 300, quoting
Cal.4th 295, 318.)
At the
April 9, 2013 review hearing, there were no longer any protective issues in the
case. Both parents had completed their reunification
plans and the court found each of them was a functional parent able to take
care of K.C. Thus, the essential basis
for exercising dependency jurisdiction no longer existed. No one, including Robert, the only appellant
(see fn. 2, ante), disputes this
conclusion or challenges the termination of dependency jurisdiction.
What is at
issue is the portion of the custody order that awarded R.S. "primary"
physical custody.
title="">[7] " ' Joint physical custody'
means that each of the parents shall have significant periods of physical
custody. Joint physical custody shall be
shared by the parents in such a way so as to assure a child of frequent and
continuing contact with both parents . . . ." (Fam. Code, § 3004.) We cannot agree with Robert that the juvenile
court's decision to award "primary" physical custody of K.C. to R.S.
in this case was arbitrary, capricious, or patently absurd.
At most,
the court granted R.S. one additional hour per week of physical custody. (See fn. 5, ante.) However, by labeling
R.S.'s physical custody of K.C. as "primary" physical custody, the
court made it possible for her to secure transitional housing for her and
K.C. At that point in time, there were
no other housing options for R.S. The
court reasoned that joint physical custody (see Fam. Code, § 3004) was in
K.C.'s best interests because both parents were able to take care of him. We cannot fault this reasoning. There were no longer any protective issues in
this case. No one disputed that it would
benefit K.C. to have a child-parent relationship with both Robert and R.S. The social worker testified it would be
detrimental to K.C. if he could not have regular contact with R.S. because she
lacked housing. Under these
circumstances, it was in K.C.'s best interests to bestow the label
"primary" to R.S.'s physical custody to satisfy Interfaith Community
Services' "primary residence" requirement, thus making it possible
for K.C. to have two fully involved, functional parents who were able to care
for and nurture him. We recognize the
use of the label "primary custody" was not numerically accurate
because the mother had less than 50 percent custody, and we do not condone
the court's conduct in creating confusion in the court minutes. (See fn. 5, ante.) Nonetheless, the stipulated
testimony from Interfaith Community Services was far from clear as to exactly
what was required for the mother to secure housing, and a designation of
primary custody is not dependent upon a numerical majority of custody hours.
Moreover,
the guiding principle in custody determinations ─ as it is in all
dependency law ─ is the minor's best interest. Permitting K.C. to leave dependency court
with both parents having joint physical as well as joint legal custody under
these circumstances plainly falls within this broad-ranging authority of the
juvenile court. (§ 245.5; see
Cal.App.4th 478, 486 [juvenile law provisions have been broadly interpreted to
authorize wide variety of remedial orders intended to protect the safety and
well-being of dependent children]; In re
Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [juvenile court has
broad discretion to determine what would best serve dependent child's interests
and enter appropriate orders to protect the child].) There was no abuse of discretion.
Our
conclusion is bolstered by the analogous discretionary designation of one
parent as the "primary caretaker" of the child in family law joint
custody cases. (See Fam. Code,
§ 3086 ["[i]n making an order of joint physical custody or joint
legal custody, the court may specify one parent as the primary caretaker of the
child and one home as the primary home of the child, for the purposes of
determining eligibility for public assistance"].) There is no statutory numerical requirement
attached to the "primary caretaker" designation; it is merely a tool
in assessing eligibility for public assistance programs. (See Hogoboom & King, Cal. Practice
Guide, Family Law (The Rutter Group 2013) ¶ 7:361, pp. 7-149, 7-150.) Similarly, here it appears the juvenile court
labeled R.S.'s custody "primary" to enable her to secure transitional
housing through a charitable service agency.
We also
note the custody portion of the exit order with its time sharing arrangement
was in keeping with core principles and policies of family law, which include
assuring the health, safety and welfare of the child, and assuring the child
has frequent and continuing contact with both parents. (Fam. Code, § 3020, subds. (a), (b).)
was akin to the type of analysis a family law court would make in fashioning an
initial custody determination between two fit parents. (See In re
Marriage of Burgess (1996) 13 Cal.4th 25, 31, citing Fam. Code,
§ 3040, subd. (b).)
To the
extent that Robert maintains housing should not have been "handed to her [R.S.]
on a platter," we cannot find error.
He has not pointed to any specific negative effects to him caused by the
court's "primary" label regarding R.S.'s physical custody of K.C. In short, Robert has not established a
Celine R. (2003) 31 Cal.4th 45, 60, quoting Cal. Const., art. VI,
§ 13.) Along these lines, it is
important to note two things. First,
throughout the proceedings Robert has acted as a competent and loving parent
and that he did so considerably earlier than R.S. No one disputes this fact. Second, the allocation of more time to R.S.
was not a result of Robert doing something wrong. Nonetheless, the focus of the court below, as
well as at the appellate level, must be on the child's best interest, not on
achieving equal or fair treatment vis-Ã -vis the parents. "[T]he question [properly] presented to
the trial court is the best interest of the child[], not fairness to
[Robert]." (In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 794,
disapproved on another ground in In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1099-1100.)
As pointed
out in our recitation of the facts, the juvenile court ruled that because R.S.
was seeking to modify custody, it would apply a section 388 analysis. Because the bulk of the parties' briefing
centers on this issue, we shall assume without deciding for purposes of this
appeal that the court did not err in choosing this approach.
Robert
contends the court abused its discretion in awarding R.S. primary custody of
K.C. and there was insufficient evidence that her circumstances had changed to
the point it was in the child's best interests to do so. The contention is without merit.
Section 388
allows the juvenile court to modify an order if a parent establishes, by a
preponderance of the evidence, that there are changed circumstances or new
evidence and the proposed change would promote the child's best interests. (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806.) The juvenile court may consider the entire
factual and procedural history of the case in considering a section 388
petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
Rulings on
section 388 motions are reviewed on appeal for abuse of discretion. (In re
Stephanie M., supra, 7
Cal.4th at p. 318.)
" 'The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
trial court.' [Citations.]" (Id.
at pp. 318-319.) We will not
reverse unless the court has exceeded the bounds of reason by making an
" ' "arbitrary, capricious, or patently absurd
determination." ' "
(Id. at p. 318.)
Robert
argues that R.S. had not shown changed circumstances, but merely changing
circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) We disagree.
By the April 9, 2013 review hearing, R.S. had completed her case plan,
and had become a functional parent who was able to care for and nurture
K.C. The protective issues in the case
had been eliminated. The court so found and
this finding was supported by substantial evidence supplied by Agency.
We also
conclude the change in custody order was in the best interests of K.C.,
satisfying the second prong of section 388.
(In re Casey D.,
p. 47.) The child's best interests
are the paramount concern of the juvenile dependency system. This concern underlies the system's primary
goals of child safety and well-being, preservation of the natural family and
timely permanency stability for a dependent child. (In re
William B. (2008) 163 Cal.App.4th 1220, 1227.) The court's order, by allowing R.S. to obtain
housing, made it possible for K.C. to have two fully involved, functional
parents who are able to care for and nurture him. The order was undeniably in K.C.'s best
interests. The court's broad discretion
in determining a minor's best interests will not be reversed on appeal unless
the party challenging it has clearly established an abuse of discretion, that
is, has shown the court made an arbitrary, capricious or patently absurd
determination. (In re Stephanie M., supra,
7 Cal.4th at p. 318.) There was no
abuse of discretion.
DISPOSITION
The order
is affirmed.
HALLER, Acting P.
J.
WE CONCUR:
McINTYRE, J.
IRION, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code unless otherwise specified.
name="_ftn2" title="">[2] R.S. is not a party to this appeal and has not filed
briefing in this case. Agency filed the
respondent's brief, which was joined by minor's counsel.
